STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

VIENNA RESTAURANT,

Respondent.

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) Case No. 07-3618

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on October 3, 2007, in Fort Lauderdale, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings, pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes (2007).

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Klaus Platzer, pro se

Vienna Restaurant 4611 University Drive

Coral Springs, Florida 33067

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent committed the various acts alleged in the Administrative Complaint in violation of the "food code," as more particularly cited below, and if so, what, if any, penalty is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), alleged in an Administrative Complaint dated March 13, 2007, that Respondent violated various standards governing public food service establishments. Respondent disputed the allegations and requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, through an Election of Rights form.

On August 10, 2007, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The case was noticed for hearing on August 16, 2007. The hearing was rescheduled for October 3, 2007, and conducted as scheduled.

At hearing, Petitioner presented the testimony of Deborah Audain, Sean Grosvenor and Terrence Diehl. Petitioner's Exhibits A through D were admitted into evidence. Respondent presented the testimony of Klaus Platzer and Sherry Platzer, owners of Old Vienna Restaurant, and Respondent's Exhibits numbered 1 through 3 were admitted into evidence.

The proceeding was recorded and transcribed. After an extension of time was provided, the parties were given until December 19, 2007, to file proposed recommended orders. Both Petitioner and Respondent filed timely Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes.

2. At all times material to this case, Respondent was a restaurant located at 4611 University Drive, Coral Springs, Florida, holding Food Service license number 1614898.

3. On January 22, 2007, Deborah Audain, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Ms. Audain observed five large roaches in the prep area, three roaches in the hot-holding area, 14 in the kitchen by the stove, three crawling on seasonings on the kitchen shelf, one crawling on the kitchen floor, and one in the bathroom hallway.

4. Ms. Audain prepared and signed an inspection report detailing her findings during the inspection. In addition to the roach infestation, 25 violations of applicable Food Code regulations were also found on January 22, 2007, which were

   cited in a Food Service Inspection Report (Inspection Report). Ms. Audain went over the report, which was on a hand held machine, with Mr. Platzer. He could not read it since it was not a paper report.

5. As per Department procedure when a roach infestation is found, Ms. Audain faxed the inspection report to the Tallahassee office for review. The review resulted in emergency closure of the restaurant due to the roach infestation problem, which created a public health threat.

6. Ms. Audain notified the Respondent that someone would return the following day for a re-inspection and then again at a later date for a callback inspection.

7. On January 23, 2007, Sanitation and Safety Specialists Sean Grosvernor and Terrence Diehl returned to Old Vienna Restaurant as scheduled. Respondent had resolved and corrected the roach problem and the restaurant's license was reinstated. Mr. Grosvernor and Mr. Diehl gave Respondent a written Food Service Inspection Report, a copy of which was signed at the restaurant by co-owner Sherry Platzer.

8. The January 23, 2007, Legal Notice Food Service Inspection Report read in pertinent part:

   * * *

   
   

   2 dead roaches on shelf in kitchen (employee removed)

   Approved to reopen per Kendall Burkett

   *All other violations must be corrected by 2/23/07.

   
   

9. On March 7, 2007, Ms. Audain and Mr. Diehl re-inspected Old Vienna Restaurant and determined that four of the violations remained uncorrected. During the inspection Mr. Grosvernor and Mr. Diehl prepared a Call Back/Re-Inspection Report, (Re- Inspection Report) setting forth the findings from the re- inspection and recommending that an administrative complaint be filed.

10. According to the March 7, 2007, Re-Inspection Report, during the call-back inspection, 22 of the 26 originally cited violations from the January 22, 2007 inspection had been corrected since the initial inspection. The other violations had not been corrected.

11. The first uncorrected violation for which Respondent was cited was Food Code Rule 4-501.114(a)--not maintaining chlorine sanitizer in the final rinse of the dishwashing machine, a critical violation. Respondent contacted Cheney Brothers to service the dishwashing machine and fix it when informed that the machine didn't have the proper level of chlorine on January 22, 2007. The company reported to the restaurant, worked on the dishwashing machine, and informed the owners that it was working because it tested properly. The

    owners didn't know why the correct level of chlorine did not register when the operator checked it twice upon inspection.

12. Respondent was also cited for a violation of Food Code Rule 3.302.11 (A)(1)--having an improper vertical separation of raw animal foods and ready-to-eat foods since the restaurant’s raw eggs in the walk-in-cooler were stored on the top shelf over ready-to-eat foods, a critical violation. The eggs were stored on the top shelf with an aluminum sheet pan underneath.1 Respondent had been storing the eggs the same way for seventeen years. After receiving the March 7, 2007, inspection, Respondent moved the eggs to the bottom shelf.

13. Respondent was also cited a second time for a violation of Food Code Rule 3-302.11(A)(1)--the inspectors observed boxes of perishable food on the floor in the walk-in- cooler, a critical violation. The boxes contained fries and meat that had been dropped for delivery by Cheney Brothers. Respondent was not storing the food on the floor but was in the middle of the restaurant's food delivery process when the boxes were observed on the floor.

14. Respondent's procedures for delivery included Cheney Brothers dropping off food daily. The perishable food is delivered in boxes and placed in the walk-in-cooler by Cheney Brothers to keep cold until Respondent put it away. The food is typically unpacked and put away within an hour after delivery.

15. The Department also cited Respondent for the fourth uncorrected violation, Food Code Rule 2-402.11--due to the food handler in the kitchen prepping foods without a proper hair restraint, a non-critical violation.

16. A critical violation is a violation that poses an immediate danger to the public.

17. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation.

18. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. No evidence of prior disciplinary action being taken against Respondent by the Department was

    presented.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.2

20. Petitioner has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to Section 20.165 and Chapter 509, Florida Statutes.

21. The Division is authorized to take disciplinary action against the holder of such a license for operating in violation of Chapter 509, Florida Statutes, or the rules implementing that chapter. Such disciplinary action may include suspension or revocation of the license, imposition of an administrative fine not to exceed $1,000.00 for each separate offense, and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program. § 509.261, Fla. Stat.

22. Here, the Division seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Division has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Department of Banking and Finance

    Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

23. A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Florida department of

    Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

24. The Administrative Complaint alleged that on January 22, 2007, January 23, 2007, and March 7, 2007, Respondent violated Food Code Rules 3-302.11(A)(1)(two violations), 2-402.11, 4-501.114(A), and 6-501.111.

25. Food Code Rule 3-302.11 states in pertinent part:

    
    

    1. Food shall be protected from cross contamination by: (1) Separating raw animal foods during storage, preparation, holding, and display from: (a) Raw ready-to-eat food including other raw animal food such as fish for sushi or molluscan shellfish, or other raw ready-to-eat food such as vegetables, and (b) cooked ready-to-eat food.

       
       

26. Food Code Rule 2-402.11 states:

    
    

    Effectiveness (A) Except as provided in paragraph (B) of this section, food employees' shall wear hair restraints such as hats, hair coverings or nets, beard restraints, and clothing that covers body hair, that are designed and worn to effectively keep their hair from contacting exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. (B) This section does not apply to food employees' such as counter staff who only serve beverages and wrapped or packaged foods, hostesses, and wait staff if they present a minimal risk of contaminating exposed food; clean equipment, utensils, and linens, and unwrapped single- service and single-use articles.

27. Food Code Rule 4-501.114(A) states: Manual and Mechanical Warewashing

    Equipment Chemical Sanitization-Temperature, PH, Concentration, and Hardness. A chemical sanitizer used in sanitizing solution for a manual or mechanical operation at exposure times specified under paragraph 4-703.11(C) shall be listed in 21 CFR 178.1010 (579KB) sanitizing solutions, shall be used in accordance with the EPA-approved manufacturer's label use instructions, and shall be used as follows: (A) A chlorine solution shall have a minimum temperature based on the concentration and pH of the solution as listed in the following chart

    [summarized as follows: Minimum concentration 25 mg/L at 120 degrees Fahrenheit water (pH 10 or less) or 75 degrees Fahrenheit (pH 8 or less); 100 mg/L at 55 degrees Fahrenheit water temperature, pH 10 or less.]

    
    

28. Food Code Rule 6-501.111 states:

    
    

    Controlling Pests. The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the premises by: (A) Routinely inspecting incoming shipments of food and supplies;

    (B) Routinely inspecting the premises for evidence of pests; (C) Using methods, if pests are found, such as trapping devices or other means of pest control as specified under sections 7-202.12, 7-206.12, and 7- 206.13; and (D) Eliminating harborage conditions.

    
    

29. The Division failed to prove the first allegation of the Administrative Complaint, a violation of Food Code Rule 3- 302.11(A)(1). The record reflects that even though the eggs were stored on the top shelf over ready-to-eat foods, the eggs were separated with an aluminum pan as had been the Respondent's practice for 17 years. The Division did not meet its burden to establish that cross contamination could take place by shelled eggs dripping in the ready-to-eat foods below on the shelf with the aluminum pan in between.

30. Likewise, the Division has not proven that Respondent was storing food in the walk-in cooler in violation of Food Code Rule 3-302.11(A)(1). Instead, the record demonstrates that Respondent's food supplier delivered food daily and placed the

    perishable food boxes in the cooler on the floor temporarily, usually no more than an hour, until Respondent puts it away.

31. The Division met its burden of establishing by clear and convincing evidence that Respondent was in violation of Food Code Rules 2-402.11, 4-501.114(A), and 6-501.111, as alleged in the Administrative Complaint. The record is clear that Respondent did not have the required minimum level of chlorine santizer upon re-inspection. Additionally, in this matter,

    Mr. and Ms. Platzer did not dispute that the employee doesn't wear a hair restraint and admitted that the restaurant had roaches at the January 22, 2007, inspection.

32. The Division proposed a total administrative fine of

    
    

    $2,300.00. In consideration of the substantially less serious nature of the violations actually proven, versus those which were charged, a substantial reduction of the penalty sought is warranted.

33. The foregoing violations constitute two critical violations and one non-critical violation. A more appropriate fine under the circumstances is $900.00. Respondent’s immediate efforts to correct the chlorine level in the dishwasher is a mitigating circumstance that justifies a reduction of the fine to $250.00. A fine in the amount of $500.00 is appropriate for the other critical violation and $150.00 is appropriate for the non-critical violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order:

1. Dismissing two counts of Food Code Rule 3-302.11.

   
   

2. Finding that Old Vienna Restaurant violated Food Code Rules 2-402.11, 4-501.114(A), and 6-501.111.

3. Imposing an administrative fine of $900.00, payable under terms and conditions deemed appropriate.

4. Imposing mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 14th day of January, 2008, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2008.

ENDNOTES

1/ The record reflects conflicting testimony regarding the aluminum pan being under the eggs. Respondent's testimony is found to be more credible.

2/ Unless otherwise indicated, all references are to the 2007 Florida Statutes.

COPIES FURNISHED:

Klaus Platzer Vienna Restaurant

4611 University Drive

Coral Springs, Florida 33067

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-003618

Orders for Case No: 07-003618